Voting rights case: Made simple

Posted Fri, February 8th, 2013 9:48 am by Lyle Denniston

On February 11, the blog will begin publishing articles in a symposium on the Supreme Court case testing the constitutionality of the key section of the Voting Rights Act of 1965. A list of contributors is here. The case, Shelby County v. Holder (docket 12-96), will be heard by the Court on Wednesday, February 27, at 10 a.m. The following post explains, in non-legal terms, what the case is about. This post is an updated and expanded version of one that appeared on the blog on September 7, before the Court granted review of this case.

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Nearly a half-century ago, Congress decided that the government could not end racial discrimination in voting simply by suing one state, county, or city at a time, because officials who were determined to keep minorities away from the polls were quickly shifting to new tactics. The only way to keep ahead of those tactics, Congress decided, was to bar the worst offenders among state and local governments from adopting any new election laws until they had first proved that those laws would not discriminate. That was a massive shift in policy, and it worked: the law that Congress passed in 1965, the Voting Rights Act, is now widely credited with being the most effective civil rights law in American history; even the Supreme Court has said so.

But the Supreme Court has become one of the skeptics about the constitutionality of the law, partly because of the very fact that the law has been so successful. ”Things have changed in the South,” the Court commented in 2009. And, at that time, it pondered striking down the key part of the 1965 law — Section 5 — on the theory that “the evil that Section 5 is meant to address may no longer be concentrated” in the states, counties, and cities that must obey that section. There are nine of those states, plus local governments in seven other states. They are required to get permission in Washington before they may change any law dealing with voting — no matter how trivial the change. The Court chose at that time to leave the law as is, but hinted strongly that Congress should update it.

When Congress first drafted that law, it targeted states or communities with the most flagrant histories of bias against minority voters. It chose as its starting point the states that had used a discriminatory voting law or method that was in effect in November 1964. More recently, the formula was changed to key it to the situation as of 1972. When the formula applies, states can only regain control over their election laws by proving that they have not discriminated for at least ten years. As long as the law applies to them, any change in voting provisions is automatically blocked as soon as it is adopted, and can only be put into effect with the permission either of the Justice Department or of a special federal court in Washington. If an entire state is covered, not only the state government but also all of its local governments, too, must obey the law. In other states where it partially applies, only specific local units are covered.

For much of the past decade, a chorus of new complaints has been rising among those states, counties, and cities still operating under Section 5, arguing that they continue to be singled out for the deep federal intrusion into their own self-government, when the conditions which justified that intrusion in the first place — or even in 1972 — have long since changed. The Supreme Court first upheld the law’s constitutionality in 1966, and has again upheld it each time Congress extended it, although various members of the Court have expressed concern about its impact on the powers of states that must satisfy the law’s demands. Most recently, in 2006, Congress extended the law to 2032. After that last extension, a case testing its constitutionality reached the Court in 2009, but the Justices found a way to make it easier for covered areas to get out from under the law. The Court thus avoided the constitutional question that time, but remarked bluntly that the law “imposes current burdens and must be justified by current needs.”

Congress, probably unable to agree on ways to change the law, has not taken the Court’s hint. So, covered governments began lining up to test again the constitutionality of Section 5, including the 1972-based formula for coverage. Two of those cases reached the Supreme Court last July. In November, the Court accepted one of those cases for review, and denied the other.

The Court took on the case from Shelby County, Alabama, which is covered by Section 5 because all of the state of Alabama is covered, as it has been since August 1965. Shelby County, southeast of Birmingham and a part of that city’s metro complex, has a population of nearly 200,000 people, more than eighty-three percent of whom are white. It did not seek Washington’s approval for any voting change, but instead — noting the skepticism of the Supreme Court in the 2009 opinion — went to court in Washington with a plea to strike down Section 5 as written. It lost in both the federal district court and in the U.S. Court of Appeals for the D.C. Circuit, then took its case on to the Supreme Court.

Shelby County’s lawyers argued that a state or local government covered by the law “must either go hat in hand to Justice Department officialdom to seek approval, or embark on expensive litigation in a remote judicial venue.”

The county’s lawyers also told the Supreme Court that the Justice Department in the Obama administration has engaged in increasingly aggressive enforcement of Section 5. The Department mounted challenges, under Section 5, to changes in election districts in Texas and new photo ID requirements for voters to go to the polls in Texas and South Carolina.

Because the county asked the Court to strike down Section 5 as it is written, a decision which went that far would mean that Section 5 could no longer be enforced against any state, county, or city. The case, however, only involves Section 5 of the 1965 Act. There is another provision, Section 2, that applies all across the country, not just to state and local governments with a history of racial discrimination in voting. But that section is considered a less effective means of challenging state and local election laws, because the Justice Department and private challengers have to go to court one case at a time and they have the full burden of convincing a court that a law does discriminate. That contrasts with the Section 5 approach, which puts the burden on the state or local government to show an absence of discrimination under a new law or election procedure.

Shelby County’s case asked the Court to rule on the constitutionality of Section 5 under three provisions of the Constitution: the Tenth Amendment, which seeks to protect the sovereignty of states by preserving their rights of self-government; the Fifteenth Amendment, which gives Congress authority to pass laws to end the denial of voting rights based on race, and Article IV, which guarantees each state that it will have “a republican form of government,” meaning the power to govern itself without excessive interference from the national government.

When the Justices agreed on November 9 to review the case, they added a fourth constitutional provision: the Fourteenth Amendment, which guarantees legal equality. The Court apparently believed that this Amendment might also be in play because of the challengers’ claim that the Fifteenth Amendment only provides limited authority for Congress to ban discrimination in voting, and the Court may have wanted to examine whether Congress’s powers to mandate voter equality are broader under the Fourteenth Amendment.

After the Court holds a scheduled one-hour hearing on the case on February 27, private deliberations on a decision will begin, with the case expected to be decided before the Court recesses for the summer, probably in late June. Meanwhile, the Court is holding another Section 5 challenge, involving Texas’s election districting plans (struck down by a lower court), until after it decides the Shelby County case.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.